IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40404
Summary Calendar
FREDDY HURLEY,
Plaintiff-Appellant,
versus
ALLEN POLUNSKY, Texas Department of Criminal Justice;
WAYNE SCOTT, Director; Texas Department of Criminal Justice -
Institutional Division; SALVADOR “SAMMY” BUENTELLO, Texas
Department of Criminal Justice - Institutional Division;
GARY L. JOHNSON, DIRECTOR, Texas Department of Criminal
Justice - Institutional Division; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, STAFF POSITIONS & EMPLOYMENTS, Names
Unavailable,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CV-604
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September 28, 2000
Before DAVIS, JONES and DEMOSS, Circuit Judges.
PER CURIAM:*
Texas state prisoner Freddy Hurley, #453088, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint,
with prejudice, under 28 U.S.C. § 1915(A) as frivolous and for
failure to state a claim upon which relief may be granted.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-40404
- 2 -
Hurley’s pending “motion for emergency order and preliminary
injunction” is DENIED.
Hurley asserts that 1) he was entitled to a default judgment
because the defendants and their counsel failed to attend the
evidentiary hearing held pursuant to Spears v. Mc Cotter, 766
F.2d 179 (5th Cir. 1985); 2) the magistrate judge made improper
credibility assessments at the Spears hearing; 3) the district
court failed to conduct the required de novo review of the
magistrate judge’s first report and recommendation; 4) the
district court erred in dismissing his claims against supervisory
defendants Allen Polunsky, Wayne Scott, and Gary Johnson; 5) he
should have been granted an opportunity to ascertain the
identities of other unnamed defendants through discovery; and
6) prison officials allowed him to be assaulted by another
inmate.
We have reviewed the record and Hurley’s brief and conclude
that the district court properly dismissed his complaint as
frivolous and for failing to state a claim upon which relief may
be granted. The defendants did not fail to comply with the
magistrate judge’s “order setting evidentiary hearing.” See
Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). The magistrate
judge did not use Hurley’s prison records to contradict his
Spears testimony. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991). The district court explicitly stated that it had
conducted “a careful de novo review” of each of the magistrate
judge’s reports and Hurley’s objections thereto. See Koetting v.
Thompson, 995 F.2d 37, 40 (5th Cir. 1993). Hurley’s claims
No. 00-40404
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against supervisory defendants Polunsky, Scott, and Johnson were
properly dismissed. Alton v. Texas A & M University, 168 F.3d
196, 200 (5th Cir. 1998). Furthermore, Hurley has not shown that
he should have been granted an opportunity to ascertain the
identities of other unnamed defendants. See Jones v. Greninger,
188 F.3d at 327. Finally, Hurley’s contention that prison
officials allowed him to be assaulted by another inmate was not
presented to the district court and is not considered. See
Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir.
1999), cert. denied, 120 S. Ct. 2004 (2000).
Hurley’s appeal is without merit and therefore frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R.
42.2. The district court’s dismissal of the present case and our
dismissal of this appeal count as two strikes against Hurley for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385-88 (5th Cir. 1996). We caution Hurley that once he
accumulates three strikes, he may not proceed in forma pauperis
in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION DENIED.